Opinion
14-19-01019-CV
03-15-2022
GEORGE V. LETSOU M.D., JACKIE LEE MULLINS, MD AND CARDIOVASCULAR CENTER, P.A., Appellants v. NATALIE WRIGHT, Appellee
On Appeal from the 151st District Court Harris County, Texas Trial Court Cause No. 2019-39174
Panel consists of Chief Justice Christopher and Justices Wise and Hassan.
MEMORANDUM OPINION
Ken Wise Justice
Appellants Dr. George Letsou and Dr. Jackie Lee Mullins appeal the trial court's denial of their motions to dismiss for failure to file adequate expert reports. 1 In one issue they challenge one of the expert reports submitted by appellee Natalie Wright in support of her health care liability claim. We affirm.
Dr. Mullins's brief indicates it is filed on behalf of Dr. Mullins and the Cardiovascular Center, P.A.; however, the only issue stated therein is that the trial court abused its discretion in overruling Dr. Mullins's objections to one of appellee's expert reports and denying his motion to dismiss. Cardiovascular Center does not raise any independent issues as a basis for reversal.
I. Background
On July 14, 2017, appellee sought treatment for a foot injury at Bayshore Medical Center. She had an existing fracture in her foot, "apparent cellulitis, and compromised circulation." The following day, Dr. Mullins ordered an arterial doppler of appellee's leg. On July 16, Dr. Mullins saw appellee again and noted that the arterial doppler scan had not been done. The scan was performed later that same evening. Two days later, on July 18, Dr. Mullins performed an angiogram, placed an order to transfer appellee to another hospital, and recommended a surgical evaluation. The next day, July 19, Dr. Mullins examined appellee again and "found her right foot was cyanotic with purpura and necrosis." Also on July 19, Dr. Letsou recommended a combination endovascular and open surgical approach for revascularization, and he initiated a transfer to another hospital.Appellee was not transferred until two days later, July 21, just before midnight. Appellee underwent a "right common femoral thromboendoarterectomy with saphenous vein patch angioplasty and right below the knee amputation."
Both Drs. Mullins and Letsou put in an order for transfer to Memorial Hermann in the Houston Medical Center.
Appellee filed suit against appellants, alleging health care liability claims of negligence. Appellee argued that both doctors were negligent in failing to ensure that she was transferred to another hospital within a reasonable time. Because her claims against appellants are health care liability claims, appellee filed and served two expert reports upon appellants, the first from Dr. Rankin and the second from Dr. Teng. 2
Dr. Rankin's expert report details that he is a medical doctor, is licensed and practicing in New Mexico, and has been involved in the diagnosis, care, and treatment of patients like appellee. Dr. Rankin is board certified in Family Medicine and since 2012 has practiced "exclusively in a hospital setting as a hospitalist." As a hospitalist, Dr. Rankin issues orders for his patients and works with other members of a health care team to ensure those orders are followed in a timely manner. Dr. Rankin opines that "ensuring that an order is followed is the responsibility of multiple physicians, including specialists such as cardiologists and cardiovascular surgeons, and is a standard of care that has substantially developed in more than one field." Dr. Rankin further indicates that "[ensuring patients are properly transferred to a higher level of care is the responsibility of multiple physicians, specialists, and nurses." Dr. Rankin knows when his patients have not been transferred because he sees them during daily rounding. He indicates that time is of the essence when "dealing with patients who have limb ischemia from clotting." When patients are not timely transferred, Dr. Rankin works with other health care team members to help facilitate a transfer to another hospital to meet the needs of the patient. Dr. Rankin works closely "with other doctors, nurse practitioners, physician assistants, nurses and techs" and is familiar with the standard of care as it applies to other physicians and specialists, as well as hospitalists.
Dr. Rankin opines that appellants failed to assist and ensure that appellee was transferred to a hospital with a higher level of care in a timely manner. Because appellants "were part of [appellee's] specialty team assigned to evaluate, care for, and treat . . . [they] rounded routinely on [appellee] and issued orders for her." After appellants issued transfer orders for appellee, they continued seeing appellee during their rounds, and were, therefore, aware she had not been 3 transferred. They also continued to observe that her foot was not getting any better. Dr. Rankin opines that appellants breached the standard of care "and caused [appellee] to undergo amputation of her right lower extremity." Dr. Rankin opines, "Any reasonable physician, including a cardiovascular surgeon, who ordered a patient transfer for a higher level of care, especially with a patient with limb ischemia, would have inquired about the reason for the delay in transfer and made attempts to contact other physicians, or hospitals, in order to help facilitate her transfer." Appellants breached the standard of care when they failed to ensure their transfer orders were followed, contact other hospitals, and see that appellee was timely transferred for treatment. In Dr. Rankin's opinion, the delays in diagnostic workups and transfer for treatment caused appellee's condition to worsen to the point of needing amputation instead of salvage. Dr. Rankin opines that had appellee been transferred shortly after it was ordered, it is more likely than not that she would not have required amputation.
Dr. Teng's expert report indicates that he is a physician licensed to practice in California and is board certified in General Surgery as well as Vascular Surgery and Endovascular Surgery. Currently, Dr. Teng is an attending General, Vascular, and Endovascular Surgeon. He is "familiar with the standard of care for physicians, nurse practitioners, and other hospital staff by reason of active clinical practice." For patients like appellee, he is familiar with the standard of care expected, which would include the responsibility to ensure patients are properly monitored, assessed, have procedures performed timely, and be transferred to another hospital timely. Dr. Teng works closely with other members of health care staff assigned to care for his patients, including other physicians. As a surgeon, he issues orders to nurses and staff and oversees patient care and execution of those orders. He collaborates with the entire health care team caring for his patients to 4 ensure that the patients receive care that is consistent with the standard of care and prevent avoidable complications. Like Dr. Rankin, Dr. Teng concludes that had appellee "been transferred to another hospital capable of surgical intervention for her arterial occlusion when it was ordered . . . it is more likely than not and within a reasonable degree of medical probability that [appellee's] right lower extremity would have been salvageable and she would not have required an amputation." While she waited to be transferred, her right foot continued to be "significantly compromised." The delay in appellee's transfer led to a delay in treatment and caused permanent damage to the tissue in appellee's "right lower extremity, necessitating a below the knee amputation."
Appellants objected to Dr. Rankin's expert report and filed motions to dismiss. Appellants did not object to Dr. Teng's report because "it contained no criticisms" of appellants' care of appellee. The trial court denied both motions.
II. Adequacy of Expert Reports
Appellants raise a single issue on appeal, that the trial court abused its discretion in overruling their objections to Dr. Rankin's expert report and denying their motions to dismiss. Appellants contend there are three reasons why Dr. Rankin's expert report is deficient and the claims against them must be dismissed. First, appellants argue that Dr. Rankin has not demonstrated his qualifications to opine on the standard of care applicable to appellants or on causation. Second, appellants argue that Dr. Rankin's expert report failed to provide "a fair summary of his opinions regarding the standards of care applicable" to appellants and "the manner in which the care rendered" by the doctors failed to meet those standards. Third, appellants contend that Dr. Rankin's report does not explain the causal connection between their alleged breach and appellee's injury. 5
A. General Legal Principles
"We review a trial court's ruling on the adequacy of an expert report for an abuse of discretion." Miller v. JSC Lake Highlands Ops., LP, 536 S.W.3d 510, 512 (Tex. 2017). We may not substitute our judgment for that of the trial court. Id. at 513. However, a trial court abuses its discretion if it acts without reference to guiding rules or principles. Id. at 512-13.
"The Act requires a plaintiff asserting a health care liability claim to serve each defendant with an expert report that includes a 'fair summary of the expert's opinions . . . regarding applicable standards of care, the manner in which the care rendered by the physical or health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damage claimed.'" Id. at 513 (quoting Tex. Civ. Prac. & Rem. Code § 74.351(r)(6)).
If the report or reports do not represent an objective good faith effort to provide a fair summary of the applicable standard of care, the breach of that standard, and how that caused the harm, then the trial court must sustain the challenge to the adequacy of the expert's report. Id. The report must provide enough information to (1) inform the defendant of the specific conduct the plaintiff has called into question, and (2) provide a basis for the trial court to conclude that the claims have merit. Id. (quoting Bowie Mem l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002)). "A trial court may read several reports in concert in determining whether a plaintiff has made a good-faith effort to comply with the Act's requirements." Id.
B. Is Dr. Rankin Qualified to Opine?
First, appellants contend that Dr. Rankin is not qualified to opine on appellee's claims against appellants because "nothing in his training or experience 6 qualifies him to be familiar with the standards of care applicable to a cardiovascular surgeon . . . regarding the implementation of a transfer order." They argue that Dr. Rankin does not state that he has ever worked with or supervised cardiovascular surgeons like appellants in treating patients like appellee.
Dr. Rankin's report indicates that as a hospitalist he works with and coordinates a health care team, including specialists such as cardiologists and cardiovascular surgeons. As a hospitalist, Dr. Rankin issues orders for his patients and works with other members of a health care team to ensure those orders are followed in a timely manner. Dr. Rankin opines that "ensuring that an order is followed is the responsibility of multiple physicians, including specialists such as cardiologists and cardiovascular surgeons, and is a standard of care that has substantially developed in more than one field." Ensuring patients are properly transferred to a higher level of care is the responsibility of multiple physicians, specialists, and nurses.
It is not necessary that appellee's expert practice in the same specialty as appellants. See Keo v. Vu, 76 S.W.3d 725, 732 (Tex. App.-Houston [1st Dist.] 2002, pet. denied) ("Courts of appeals have also recognized that an expert witness need not be a specialist in the particular branch of the medical profession for which the testimony is offered."). "Indeed, trial courts may qualify a medical witness of a different specialty to testify if the witness has practical knowledge of what is usually and customarily done by other practitioners under circumstances similar to those confronting the malpractice defendant." Id. Here, Dr. Rankin indicated that he had worked with and coordinated health care teams, including cardiologists and cardiovascular surgeons like appellants, to care for patients like appellee. He opined that specialists, including cardiologists and cardiovascular surgeons, are 7 responsible for ensuring that their orders are followed and patients are properly transferred. See San Jacinto Methodist Hosp. v. Bennett, 256 S.W.3d 806, 813 (Tex. App.-Houston [14th Dist] 2008, no pet.) (concluding doctor was sufficiently qualified to opine on standard of care for professional nurses where doctor opined that he had either trained, consulted, or observed health care providers in the same field as defendants and was "familiar" with the standard of care for nurses in the treatment of particular injury at issue (bed sores)); Mem. Hermann Healthcare Sys. v. Burrell, 230 S.W.3d 755, 759-62 (Tex. App.- Houston [14th Dist.] 2007, no pet.) (doctor's familiarity and experience with the standard of care in treating plaintiffs condition and in supervising nurses and other personnel in treating plaintiffs condition was sufficient qualification for expert to opine on standard of care of nurse treating plaintiffs condition); see also Group v. Vincento, 164 S.W.3d 724, 734 (Tex. App.-Houston [14th Dist.] 2005, pet. denied) (holding anesthesiologist, who used same pain management modalities as do chiropractors was "practicing health care" in a field of practice that involved same type of care as chiropractor, thus satisfying statute, and doctor's statement he had knowledge of accepted standard of care for injury or illness at issue satisfied statute). Appellants argue that there "is nothing to indicate that Dr. Rankin has any experience or training with regard to arterial insufficiency, vascular injuries, or vascular surgery." However, it is not clear why such training or experience would be necessary to opine on whether appellants had a duty to follow up on their own transfer orders. Dr. Rankin does not opine that appellants should have diagnosed appellee's condition sooner or treated her in some way that they did not. Instead, he opines that once appellants concluded that appellee needed to be transferred to a higher level of care, appellants then had a duty to ensure their transfer orders were followed in a timely manner, or to contact other hospitals. 8
Appellants argue that Dr. Rankin does not identify any "training or experience" that qualifies him to be familiar with the standards of care applicable to a cardiovascular surgeon regarding the implementation of a transfer order and "does not state that he has ever worked with or supervised cardiovascular surgeons" in treating patients like appellee. However, Dr. Rankin indicates in his expert report that he has been involved with the consultation, care, treatment, and discharge of patients like appellee "with regards to patients who have blood clots and vascular issues, [like appellee] had, ensuring that patients are properly transferred to a higher level of care is the responsibility of multiple physicians, specialists, and even nurses." Dr. Teng's report further confirms that cardiovascular surgeons, like appellants, issue orders, oversee patient care, supervise the care and execution of orders, and collaborate with the entire health care team. Dr. Teng opines that the standard of care for physicians in treating patients with symptoms like appellee includes "the responsibility to ensure patients are properly monitored, assessed, have procedures performed timely, and be transferred to another hospital timely."
Appellants cite to Methodist Hospitals of Dallas v. Winn in support of their contention that Dr. Rankin does not qualify as an expert to testify regarding appellants. However, the expert in Winn was not considered to be "actively practicing health care in rendering health care services relevant to" the plaintiffs claims. The claims in Winn related to treatment, observation, documentation, and proper supervision in a hospital setting; the expert had not had experience in a hospital setting for more than twenty years and his then-current employment was as an urgent care provider. Here, Dr. Rankin works in the same setting as appellants, in a hospital, caring for patients like appellee. Dr. Rankin specifically details that he works with a team of health care providers, including specialists like 9 appellants, and is familiar with the standard of care in treating patients like appellee.
C. Is the Standard of Care Identified?
Appellants next contend that Dr. Rankin does not identify the applicable standard of care or its alleged breach. Appellants then quote Dr. Rankin's report that "[a]ny reasonable physician, including a cardiovascular surgeon, who ordered a patient transfer for a higher level of care" would "have inquired about the reason for the delay . . . and made attempts to contact other physicians and hospitals." They argue that this is too general a statement citing to Kettle v. Baylor Medical Center at Garland, 232 S.W.3d 832, 838-39 (Tex. App.-Dallas 2007, pet. denied).
In Kettle, the expert opined that all the physician-defendants collectively shared the same duty to "diagnose" and "treat" the condition "promptly" or "earlier." Id. The court reasoned that this opinion was too vague and general to satisfy the expert report requirements. Id. Here, the expert report is more specific than that in Kettle. Dr. Rankin's report states specifically that in treating a condition like appellee's, time is of the essence. He opines that appellants would have seen appellee during their daily rounds, known that their transfer order had not been implemented or followed, and should have followed-up by finding other placement for appellee. This opinion is not vague or conclusory; instead, it tells appellants the specific actions that should have been taken: contacting other hospitals and attempting to transfer appellee to another hospital that could treat her. Similarly, Dr. Teng also opines that even when considering the reason for delay, that Memorial Hermann did not have any available beds, this is "not an excuse in patient with limb ischemia. In this situation alternative hospitals should have been contacted." Dr. Teng further states, "Any reasonable and prudent physician would 10 have recognized [appellee's] need for treatment and would have made sure she was transferred to a facility that could perform that timely." Because there is no indication that appellants took any action to follow up on their orders or contact other hospitals, Dr. Rankin opines that appellants breached the standard of care to appellee.
"There is nothing inherently impermissible about concluding that different health care providers owed the same standard of care . . . and breached that duty in the same way." Methodist Hosp. v. Shepherd-Sherman, 296 S.W.3d 193, 199 (Tex. App.-Houston [14th Dist] 2009, no pet.); see also San Jacinto Methodist Hosp. v. Bennett, 256 S.W.3d 806, 817 (Tex. App.-Houston [14th Dist.] 2008, no pet.) ("Although [the expert's] opinion for each defendant is identical, he unquestionably provided an opinion for each hospital. That he held each defendant to the same standard of care, found the same type of breach, and analyzed causation in the same way does not render his opinion inadequate."); Sanjar v. Turner, 252 S.W.3d 460, 466-67 (Tex. App.-Houston [14th Dist.] 2008, no pet.) (affirming trial court's refusal to dismiss based on expert report that applied same standard of care to multiple defendants). Here, both Dr. Teng and Dr. Rankin opine that physicians, including specialists, owe the same standard of care to their patients in a hospital setting when ordering a transfer of the patient. Appellants do not contend that Dr. Teng's expert report is deficient in identifying the standard of care.
D. Do the Reports Explain the Causal Connection?
Appellants contend that "Dr. Rankin opines that the entire eight-day period between [appellee's] admission . . . and her transfer . . . was the cause of her injury." We disagree. Dr. Rankin's report indicates that the overall time period that it took for appellee to be evaluated and transferred was unreasonable under the 11 circumstances. However, even if Dr. Rankin's report is not specific enough, Dr. Teng's report may also be considered and is not challenged by appellants. See Baty v. Futrell, 543 S.W.3d 689, 694 (Tex. 2018) ("[C]ourts must view the report in its entirety, rather than isolating specific portions or sections, to determine whether it includes such information."); Miller v. JSC Lake Highlands, 536 S.W.3d 510, 513-15 (Tex. 2017) (per curiam) (concluding expert reports read together were sufficient, the report "did not need to specifically name the person who caused the delay or otherwise outline the conduct of a particular defendant who caused the delay because the other reports supplied that information."); Monga v. Perez, No. 14-16-00961-CV, 2018 WL 505263, at *14 (Tex. App.-Houston [14th Dist] Jan. 23, 2018, pet. denied) (mem. op.) ("We likewise reject the argument that Dr. Burris had to name Dr. Monga for the trial court to read his report as supporting causation.").
Dr. Teng's report concludes that "[h]ad [appellee] been transferred to another hospital capable of surgical intervention for her arterial occlusion when it was ordered on 7/18/17, it is more likely than not and within a reasonable degree of medical probability that [appellee's] right lower extremity would have been salvageable and she would not have required an amputation." He further opines that the delay in transfer resulted in about four days of continued worsening and continued ischemia to appellee's right leg. "The lack of adequate blood flow, oxygen, and nutrients to the extremity caused significant damage to the skin, muscle, tissue, and nerves in [appellee's] lower extremity." He concludes that had the transfer been facilitated on July 18 or 19, "it is more likely than not that interventions would have occurred that would have saved [appellee's] lower extremity." Similarly, Dr. Rankin concludes that "had [appellee] been transferred 12 shortly after the transfer was ordered it is more likely than not that she would not have required a below the knee amputation."
Taken together, the expert reports provide sufficient "how" and "why" of the causal relationship between the breaches of the applicable standards of care and the harm. See Miller, 536 S.W.3d at 513-15 (reading expert reports together and concluding that when considered together they met the statutory requirements); see also Van Ness v. ETMC First Physicians, 461 S.W.3d 140, 144 (Tex. 2015) (noting discretion of trial court to fully credit all the expert's statements and opinions, instead of viewing them in isolation). We overrule appellants' sole issue.
III. Conclusion
Appellee is permitted to rely on more than one expert report in meeting the requirements of the statute. Appellants challenge only Dr. Rankin's expert report but do not discuss how or why the two reports when considered together are insufficient. Based on the facts and circumstances herein, we cannot conclude that the trial court abused its discretion in denying appellants' challenges to appellee's expert reports and denying their motions to dismiss. We affirm the trial court's order. 13